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Bal Govind Kaya Vs. 3rd Addl. Civil Judge and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1573 of 1959
Judge
Reported inAIR1961All306
ActsConstitution of India - Article 227
AppellantBal Govind Kaya
Respondent3rd Addl. Civil Judge and anr.
Appellant AdvocateS.N. Misra, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
constitution - interference by high court - article 227 of constitution of india - appellant claimed to have filed some papers in court - papers found missing - enquiry ordered - appellant not given chance of being heard - court passed order that papers were not filed - petition to high court under article 227 - an opportunity given to appellant of being heard should have been appropriate - lack of such opportunity is question of error and not of jurisdiction - appellant can apply for being heard and court can reconsider his application - writ jurisdiction not exercised and petition cancelled. - - on the other hand learned counsel for the petitioner has argued that this is clearly an illegal exercise of jurisdiction and, in any event, a material irregularity......227 of the constitution filed by one bal govind kaya against whom a case is pending before the 3rd addl. civil judge, kanpur, who is respondent no. 1. the suit has been filed by brij behari lal, respondent no. 2. 2. according to the petition, the suit is contested, inter alia, on the ground that the defendant never borrowed any money and he had no need to borrow the money. written statements were filed by the petitioner and on 28-10-58 he alleges to have filed six original papers which, according to the petitioner, would have disproved and falsified the plaintiffs claim. on that day an application further is said to have been made to the effect that he was filing certain papers, and prayed for time for filing certain other papers. according to the affidavit filed by the petitioner, no.....
Judgment:
ORDER

V.D. Bhargava, J.

1. This is a petition under Article 227 of the Constitution filed by one Bal Govind Kaya against whom a case is pending before the 3rd Addl. Civil Judge, Kanpur, who is respondent No. 1. The suit has been filed by Brij Behari Lal, respondent No. 2.

2. According to the petition, the suit is contested, inter alia, on the ground that the defendant never borrowed any money and he had no need to borrow the money. Written statements were filed by the petitioner and on 28-10-58 he alleges to have filed six original papers which, according to the petitioner, would have disproved and falsified the plaintiffs claim. On that day an application further is said to have been made to the effect that he was filing certain papers, and prayed for time for filing certain other papers.

According to the affidavit filed by the petitioner, no sooner the papers were filed by the defendant than they had been removed along with the entire English order-sheet as these papers were entered therein. Next day respondent No. 1 ordered reconstruction of the English order-sheet In the index of the papers neither the application of the petitioner for extension of time nor the documents which had been filed therewith were entered.

The case at the first stage was pending before the I Civil Judge but later it was transferred to the 3rd Addl. Civil Judge, Kanpur and when on 22-12-58 he found that the papers which had been filed were not on the record he brought this matter to the notice of the Ahlemad of the 3rd Addl. Civil Judge. On reopening of the Court after winter vacation on January 2, 1959, the petitioner also made an application with an affidavit that those papers had been filed. Orders were passed for the search of the papers and for enquiry.

Some enquiry seems to have been made. But the complaint of the petitioner is that he had been given no opportunity to prove that he had filed the papers and the order which has been passed by the learned Addl. Civil Judge to the effect that the papers were not filed is an ex parte order and the principles of natural justice have been violated. He has prayed by this petition that opposite party No. 1 be directed to make enquiry about the loss of the documents and then to proceed with the hearing of the suit.

3. On behalf of opposite party No. 2 a counter-affidavit Has been filed in which it has been contended that the petitioner has been guilty of dilatory tactics. He had taken several adjournments and this also was a false pretext to get the case postponed and prolong the hearing. He contends that no documents were filed which had been lost.

4. A preliminary objection has been taken as to the jurisdiction of this Court to interfere under Article 227 of the Constitution under which this petition has been made. It has been contended by learned counsel for the opposite party that so far as the jurisdiction of this Court under Article 227 is concerned, it is very much limited. On the other hand learned counsel for the petitioner has argued that this is clearly an illegal exercise of jurisdiction and, in any event, a material irregularity.

Since it was an interlocutory order, the petitioner could not come in revision to this Court Otherwise, it would have been a case where inrevision this Court might have exercised its jurisdiction there, and since no revision lies, he has come under Article 227 of the Constitution. So tar as the question whether if there is an interlocutory proceeding and there has been an illegal exercise of jurisdiction by the Court concerned, the matter was of some difficulty and, therefore, I had occasion to refer a case to a Bench in order to ascertain whether in such cases an application, under Article 227 of the Constitution should be entertained or not.

That matter came up for decision in Ram Roop v. Bishwa Nath, AIR 1958 All 456, and was decided by a Bench consisting of Hon'ble Dayal and Srivastava, JJ. Inter alia, they were of opinion that such petitions should not be entertained. They laid down six principles for this Court for determining whether jurisdiction should be exercised or not They came to the conclusion that jurisdiction under Article 227 of the Constitution is not only administrative but also judicial. That actually has already been decided before this decision by several cases of the Supreme Court.

Among others, they had laid down the proposition that the power is to be used sparingly only in appropriate cases in which the conscience of the Court is pricked and it feels that immediate Interference is called for, as it is necessary to keep the subordinate Courts or Tribunals within their bounds or to prevent some outrageous miscarriage of justice and grave results would follow if the power is not exercised. Whether a particular case is of this kind or not will depend on its own facts and circumstances. Such cases cannot obviously be exhaustively catalogued.

5. Whether it is a question of jurisdiction or not and whether the Court has exercised it illegally or has gone beyond it, are points which are often difficult to decide. Their Lordships of the Supreme Court have laid down in Waryam Singh v. Amar Nath. AIR 1954 SC 215, that the power of superintendence conferred by Article 227 is to be exercised most sparingly and in appropriate cases in order to keep the subordinate Courts within the bounds of their authority, not for correcting mere errors. This again is a question often of difficulty, whether it is a mere error or it is going beyond jurisdiction.

6. In the present case, according to the argument of learned counsel for the petitioner, the Court acted illegally and with material irregularity in not permitting the petitioner to give evidence, and has acted against the principles of natural justice. To a certain extent that point may be conceded in favour of the petitioner. At the same time it appears to me to be difficult to saythat the Court has gone beyond its jurisdiction. In a later case of the Supreme Court also the same view has been reaffirmed. In Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam, AIR 1958 SC 398 at p. 413, it was laid down:

'It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution, Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the fact of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority.'

7. In the present case though it may have been appropriate and proper for the Addl. Civil Judge to have allowed an opportunity of proving, that those documents had been filed but this question, in my opinion, is a question of error, it at all, not of jurisdiction, I do not think that I can interfere at this stage, but this matter can he agitated by the petitioner at the time of appeal, it in the meantime the Addl. Civil Judge does not reconsider this position and allow an opportunity to the petitioner.

8. It will be open both to the petitioner to apply to the Addl. Civil Judge, Kanpur for an opportunity being given and also for the Addl. Civil Judge to reconsider, but in my writ jurisdiction I do not think I can issue any special writ at this stage. The petition is accordingly dismissed, but I make no order as to costs. The stay order is discharged.


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